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February 22, 2009

Outcomes and hiring

I am a fan of Moneylaw, a blog which consistently parses out important issues relating to legal education.  Over the past few years, a theme has developed there:  That the staffing of law faculties is too often a haphazard, subjective, and (ultimately) unsuccessful venture. 

The name of the blog, of course, is a play on "moneyball," the term used to describe Oakland A's general manager Billy Bean's process of identifying successful baseball players.  Bean is famous for throwing out the standard statistics and instead looking to factors which most strongly correlate to a successful team.  Bean is so good at this that his team has been a winner with a relatively low payroll, a rare thing in modern sports. 

In baseball, the desired outcome is easy to define-- score more runs than the other team in a game.  The hard part is figuring out how to do that.  In legal education, though, it seems like we have the reverse-- we have a bitter debate over desired outcomes, but once an outcome is articulated most people know what it takes to get there (though it may be unattainable).

At a very basic level, the outcomes sought by upper-tier schools diverge from those articulated in recent reports and by some of the lower-tiered schools.  Under the first model, the desired outcome is to produce significant scholarship.  This is a rational goal, because it creates prestige, high rankings, and a solid student body.  We all know how to get there-- primarily by being there already.  It is possible to move into that place from the outside, but only with a lot of money and cherry-picking to hire prolific scholars who may also be great teachers (see UC-Irvine).

The MacCrate report, the Carnegie report, and many lower-tiered schools assert a different desired outcome.  They focus on teaching, bar passage rates, and positive relationships between professors and students.  The hiring done by some schools reflects this, as they are more likely to bring in former practitioners and those with significant people skills (who may or may not be good scholars).

Even with this dichotomy of outcomes, though, the baseball analogy can work.  That is, it would if the American and National leagues had fundamentally different desired outcomes in games.  For example, if the American league played traditional baseball and the National League played a cooperative form of home-run derby, we would quickly see each move towards hiring those best suited to that outcome as we have in legal education.  

It may be, of course, that this two-sphere world is a positive thing in many respects, such as in giving students very different options.   The fundamental problem beneath it all, though, is that one is valued more than the other in a rankings system which creates only one list rather than recognize this dichotomy.

Perhaps, then, it is time for U.S. News to consider two lists, one for schools that hire for scholarship, and one for schools that hire for teaching.  Schools could self-identify which they wanted to be a part of, and could change their category from year to year.  It would be a more honest, transparent, and useful ranking than what we see now, where we are essentially mixing two kinds of baseball in our standings.

-- Mark Osler     

February 22, 2009 | Permalink


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But money is the score in the law, as winning games is in baseball. Money is the sincerest form of valuation by strangers.

Desperate clients get represented by desperate lawyers who invent stuff under pressure of real world consequences to the client. Judges buy it, in part, after large donations to campaigns. Charisma plays some role, and very rarely logic, morality, and the right thing to do.

Years later, an academic collects the cases of a subject area, and publishes. So scholarship represents the stale lawmaking of 5 years ago. The students memorize these cases. They are then shocked after graduation and passing the bar, where they have to learn to be lawyers from scratch.

A different rating of law schools might answer the question, what is the average wage of the grad by year? That is the public's valuation based on effectiveness of lawyering. Such a rating would also inform the future student of the school about what to expect after paying the high tuition.

A student group that wishes to improve legal education might undertake to do a scientifically valid survey of the grads stratified by year out of school. The survey should focus on the grads, and their opinions of the utility of the school. This reality based ranking might be quite different from current rankings.

Posted by: Supremacy Claus | Feb 22, 2009 8:34:52 PM

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